1. Whether charges are multiplicitous is a question of law, and an appellate court's review is
unlimited.

2. Multiplicity is the charging of two or more counts in a complaint where only a single
wrongful act is involved. The test to determine whether the charges in a complaint or
information are multiplicitous is whether each offense requires proof of an element not
necessary to prove the other offense. If so, the charges stemming from a single act are not
multiplicitous.

3. The State may not split a single offense into separate parts where there is a single
wrongful act which does not furnish the basis for more than one criminal prosecution.
However, where the criminal conduct of the defendant supports convictions for more than
one crime, K.S.A. 2005 Supp. 21-3107 provides statutory authority for multiple
convictions even though the criminal conduct of a defendant consists of a single
transaction.

4. An appellate court reviews a trial court's failure to give an instruction by a clearly
erroneous standard where the party neither requested the instruction nor objected to its
omission. Instructions are clearly erroneous only if the reviewing court is firmly
convinced there is a real possibility that the jury would have rendered a different verdict if
the error had not occurred.

5. In a multiple acts case, several acts are alleged and any one of the acts could constitute
the crime charged. In such a case, the jury must be unanimous as to which act constitutes
the crime. Therefore, to ensure jury unanimity, either the State must elect the particular
act upon which it will rely for conviction or the court must instruct the jury to agree on a
specific underlying criminal act.

6. Under the facts of this case, the trial court's failure to give a unanimity instruction to the
jury was not clearly erroneous.

7. In Kansas, the death of a defendant does not abate the direct appeal of a criminal
conviction. However, the defendant's death does render moot any sentencing issues.

PIERRON, J.: Henry Escalante appeals his conviction for attempted aggravated
kidnapping and aggravated battery. Escalante argues his convictions are multiplicitous, the trial
court erred in not giving a unanimity jury instruction, and that his criminal history calculation is
incorrect.

Escalante and his ex-wife Nancy had been in a tumultuous relationship for 19 years. They
had been married and divorced two times, and Nancy had filed for protection from abuse orders
on multiple occasions. There was a protective order in place at the time of the events in this case.
Nancy had ordered Escalante out of her house on September 24, 2003.

In the early morning hours of October 2, 2003, Escalante called Nancy and asked her to
deliver his coveralls and coat to the hotel where he was staying. Nancy agreed and told Escalante
she would deliver his clothes to the hotel during her lunch hour at work. Nancy was apprehensive
and gave a note to her coworkers indicating she was going to the County Inn. She took the
clothes to Escalante's hotel room, and he asked if she would like to come in and talk. Nancy told
Escalante she needed to get some gasoline and return to work. When she returned to her car,
Escalante got in the front seat with her. Nancy testified she was scared to death. She said she
could tell he had been drinking. Escalante said he needed a ride to Food-4-Less. Nancy said she
wanted to get out of the car right then, but they were in an isolated place in the parking lot behind
the hotel.

As they approached the Food-4-Less, Escalante told Nancy to keep driving to the country.
She looked over at him and saw he had a small kitchen or paring knife in his hand. As they
approached a K-Mart, Escalante told her to keep driving or he would stab her right there.
Because there were many people around, Nancy drove into the K-Mart parking lot, stopped the
car, opened the door, and tried to get out. Escalante pulled Nancy back into the car and repeatedly
stabbed her in the chest, waist, neck, and arm. After she broke free, Nancy ran towards the
K-Mart. A woman in a truck behind Nancy's car witnessed the entire event and was able to help
cause a distraction by repeatedly honking her horn. Nancy was taken to the hospital by
ambulance and was treated for minor cuts and released.

Escalante was charged with aggravated kidnapping, aggravated battery, criminal threat,
and aggravated assault. On the charge of aggravated kidnapping, the jury was instructed on the
lesser included offenses of attempted aggravated kidnapping and criminal restraint. The jury
convicted Escalante of attempted aggravated kidnapping, aggravated battery, aggravated assault,
and criminal threat.

Prior to sentencing, Escalante filed an objection to his criminal history and a motion for
judgment of acquittal based on multiplicity of charges. The trial court granted an acquittal of
Escalante's aggravated assault and criminal threat convictions, finding there was one continuous
course of conduct and those two convictions merged into the aggravated battery in a single act of
violence. The court rejected Escalante's criminal history objections and sentenced him to a
controlling term of 233 months' incarceration. Escalante died during his incarceration. Under
State v. Jones, 220 Kan. 136, 551 P.2d 801 (1976), we will consider the underlying
conviction,
but not the sentencing issues.

First, Escalante argues his convictions for attempted aggravated kidnapping and
aggravated battery are mutiplicitous and he cannot be convicted of both crimes. He contends the
trial court determined there was a cohesive and continuous course of conduct and he cannot be
convicted of multiple crimes for a single act of violence.

Whether charges are multiplicitous is a question of law, and an appellate court's review is
unlimited. State v. Kessler, 276 Kan. 202, 204, 73 P.3d 761 (2003). "Multiplicity is
the charging
of two or more counts in a complaint where only a single wrongful act is involved. [Citation
omitted.]" State v. Stevens, 278 Kan. 441, 446, 101 P.3d 1190 (2004). "The test to
determine
whether the charges in a complaint or information are multiplicitous is whether each offense
requires proof of an element not necessary to prove the other offense. If so, the charges stemming
from a single act are not multiplicitous." 278 Kan. at 447.

In State v. Patten, 280 Kan. 385, Syl. ¶ 4, 122 P.3d 350 (2005), the
Kansas Supreme
Court reiterated its reliance on a straight elements test for multiplicity: "The test of multiplicity is
the strict element test without considering the facts that must be proven to establish those
elements." The Patten court indicated this test is favorable (1) for facility of
application and
certainty, and (2) to avoid any possibility of returning to the difficulties of the second prong of
State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). 280 Kan. 393.

Escalante relies on State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004), for his
argument
that because there was one single act of violence in the same time and place, the charges in this
case are multiplicitous. The facts in Groves are arguably distinguishable from the
present case. In
Groves, the court held the defendant's convictions for aggravated robbery and
aggravated battery
were multiplicitous where the same act of violence, grabbing the victim's purse and knocking her
to the ground, provided the basis for each conviction. 278 Kan. at 307-08.

To be convicted of attempted aggravated kidnapping, the defendant must perform one or
more overt acts toward the commission of the crime of aggravated kidnapping, with the intent to
commit an aggravated kidnapping, but fail to complete the crime of aggravated kidnapping. See
K.S.A. 21-3301; K.S.A. 21-3421. To be convicted of aggravated battery, Escalante must have
intentionally caused physical contact with the victim in a rude, insulting, or angry manner with a
deadly weapon, or in a manner whereby great bodily harm, disfigurement, or death could have
been inflicted, on the date in question. See K.S.A. 21-3414(a)(1)(C).

We do not find Escalante's case presents a situation of a "single act of violence" as was
the case in Groves when analyzing the question of multiplicity. The events in this
case clearly
consisted of a continuous incident, but the charges are not multiplicitous as a single act of
violence. See Groves, 278 Kan. at 307; State v. Bishop, 240 Kan. 647,
653-54, 732 P.2d 765
(1987).

"The test concerning whether a single transaction may constitute two separate and
distinct
offenses is whether the same evidence is required to sustain each charge. If not, the fact that both
charges
relate to and grow out of the same transaction does not preclude convictions and sentences for
both
charges. [Citation omitted.] Multiplicity does not depend upon whether the facts proved at trial
are actually
used to support convictions of both offenses charged; rather, it turns upon whether the elements
of proof
necessary to prove one crime are also necessary to prove the other. [Citation omitted.]"
State v. Vontress,
266 Kan. 248, 256, 970 P.2d 42 (1998).

The State may not split a single offense into separate parts where there is a single
wrongful act which does not furnish the basis for more than one criminal prosecution. However,
where the criminal conduct of the defendant supports convictions for more than one crime,
K.S.A. 2005 Supp. 21-3107 provides statutory authority for multiple convictions even though the
criminal conduct of a defendant consists of a single transaction. See State v. Mincey,
265 Kan.
257, 262, 963 P.2d 403 (1998).

Considering the elements set forth in attempted aggravated kidnapping and aggravated
battery, it appears that aggravated battery does not constitute a lesser degree, attempt, or attempt
to commit a lesser degree of attempted aggravated kidnapping. Therefore, the convictions for
both counts are not necessarily multiplicitous as each charge required proof of an element not
required in proving the other, notwithstanding the fact that there was a continuous event.

Due to the elements of aggravated kidnapping as charged here, had that crime been
successfully completed, the aggravated battery would have merged with the aggravated
kidnapping. However, here there was only an attempt, which did not require a completed
aggravated battery, so the two crimes are not merged.

Next, Escalante argues the trial court erred in not giving a unanimity jury instruction. We
disagree.

Escalante did not raise his unanimity instruction argument during trial. Escalante raised
the issue in his motion for judgment of acquittal notwithstanding the verdict or, in the alternative,
for new trial. He argued that because the State kept the basis of the charges vague and did not
separate out which act formed which charge, the jury was left to guess in trying to figure out if
the verdict was unanimous. The trial court denied the motion at sentencing.

Having failed to request the jury instruction at trial, our standard of review is based on
clear error. "'It is well established that [an appellate] court reviews a trial court's failure to give an
instruction by a clearly erroneous standard where the party neither requested the instruction
nor
objected to its omission.' [Citation omitted.]" State v. Pabst, 273 Kan. 658,
660, 44 P.3d 1230,
cert. denied 537 U.S. 959 (2002). "'Instructions are clearly erroneous only if the
reviewing court
is firmly convinced there is a real possibility that the jury would have rendered a different verdict
if the error had not occurred.' [Citation omitted.]" State v. Shirley, 277 Kan. 659,
666, 89 P.3d
649 (2004).

In a multiple acts case, several acts are alleged and any one of the acts could constitute
the crime charged. In such a case, the jury must be unanimous as to which act constitutes the
crime. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). Therefore, to ensure
jury
unanimity, either the State must elect the particular act upon which it will rely for conviction or
the court must instruct the jury to agree on a specific underlying criminal act. State v.
Timley, 255
Kan. 286, 289-90, 875 P.2d 242 (1994).

In State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), our
Supreme Court adopted
a two-step analysis for determining whether a unanimity instruction is required. The first step is
to determine whether there was a possibility of jury confusion from the record, or if the evidence
shows either legally or factually separate incidents. A legally separate incident is when a
defendant presents different defenses to a separate set of facts or when the court's instructions are
ambiguous but tend to shift the legal theory from a single incident to two separate incidents. A
factually separate incident is when independent criminal acts have occurred at different times or
when a later act is motivated by a "fresh impulse." If jury confusion is not shown under step one,
the second step is to determine if the failure to give a unanimity instruction is harmless beyond a
reasonable doubt with respect to all acts. 271 Kan. at 939.

Escalante claims that he presented separate defenses to the attempted aggravated
kidnapping, namely that the cuts were minor and Nancy was not confined when they got in the
car and left the hotel, and to the aggravated battery, namely that no knife was ever found and
Nancy was not a credible witness. We agree with the State that Escalante's claims of multiple
defenses are without merit and obviously amount to the same defense, namely that he did not
kidnap Nancy and he did not cut her badly with the knife.

As previously discussed in relation to the multiplicity argument, the events in this case
involved a relatively short, continuous, single incident comprised of several overt acts
individually sufficient for conviction of attempted aggravated kidnapping as well as aggravated
battery. Consequently, jury unanimity requires only that the jury agree to the act of the crime
charged, not which particular act. See State v. Staggs, 27 Kan. App. 2d 865, Syl.
¶ 2, 9 P.3d 601
(2000).

We do not consider this case a "multiple acts" case, and we are convinced that there was
no possibility of jury confusion. There was certainly no clear error in not giving the unanimity
instruction. Moreover, any such purported error was harmless beyond a reasonable doubt with
respect to all acts. See Hill, 271 Kan. at 939-40. Specifically, it was made clear what
overt acts
were charged and which supporting evidence that the State was relying upon in establishing each
charge, and Escalante did not present separate defenses to any of the overt acts outlined by the
prosecution.

Last, Escalante argues the trial court erred in overruling his objection to his
criminal
history by including in his history a crime that had been enhanced and also the crimes used to
enhance that crime to the felony level. His appellate brief requests a remand for resentencing.

"Although many other courts have held the death of a defendant during the
pendency of his appeal
from a criminal conviction abates the appeal, in Kansas the death of a defendant does not abate
his direct
appeal as it is in the interest of the public that the issues raised on appeal be adjudicated upon the
merits.
State v. Jones, 220 Kan. 136, 137, 551 P.2d 801 (1976). While death moots the
sentence and renders
impossible a new trial, [a defendant's] appeal as to the admitted redacted statement should be
reviewed and
decided." State v. Burnison, 247 Kan. 19, 32, 795 P.2d 32 (1990).

We hold all issues regarding computation of Escalante's sentence are rendered moot as a
result of his death, as any resentencing is academic.

Affirmed.

MALONE, J., concurring and dissenting: I concur with the majority in all respects except
for its conclusion that Henry Escalante's conviction of aggravated battery did not merge with the
conviction of attempted aggravated kidnapping. The majority concludes that had the "crime [of
aggravated kidnapping] been successfully completed, the aggravated battery would have been
merged with the aggravated kidnapping." However, because Escalante was only convicted of
attempted aggravated kidnapping, the majority concludes there was no merger. I fail to follow
this reasoning and conclude instead that the two convictions arise from a single act of violence
and are therefore multiplicitous.

Escalante attempted to force his ex-wife Nancy to drive to the country against her will.
When she tried to get away, he repeatedly stabbed her in the chest, waist, neck, and arm. For
these acts, Escalante was charged with aggravated battery and also with aggravated kidnapping.
The jury found him guilty of aggravated battery as charged. The jury also found Escalante guilty
of attempted aggravated kidnapping as a lesser included offense of aggravated kidnapping,
presumably because he did not succeed in getting Nancy to drive to the country. Escalante
received a separate sentence for each conviction. The issue is whether under these facts the
conviction of aggravated battery merged into the conviction of attempted aggravated kidnapping
so as to make the separate convictions multiplicitous.

Multiplicity exists where the State attempts to use a single wrongful act as the basis for
multiple charges and is based on the doctrine of merger. State v. Garcia, 272 Kan.
140, 143, 32
P.3d 188 (2001). Multiplicity is the charging of a single offense in several counts of a complaint
or information. The primary concern with multiplicity is that it creates the potential for multiple
punishments for a single offense, which is prohibited by the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of
Rights.
State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998).

The Kansas Supreme Court has candidly noted that the issue of multiplicity "has been a
highly confusing subject in Kansas law, and our prior cases have not always been clear."
Garcia,
272 Kan. at 142. Kansas appellate courts have struggled in many cases to develop a "test" for
determining multiplicity. While recent decisions have relied upon a strict "elements test" as the
method of determining multiplicity, Kansas has also long recognized the merger of crimes when
they arise from a "single act of violence." The following summary of cases demonstrates the
alternative approaches Kansas courts have followed in resolving multiplicity issues.

In State v. Garnes, 229 Kan. 368, 624 P.2d 448 (1981), the defendant shot
the victim at a
nightclub causing only a superficial wound. The defendant and the victim then drove out to the
country where the defendant attempted to kill the victim by stabbing her and running over her
with the car. The defendant was charged with one count of attempted murder and two counts of
aggravated battery, one count for the shooting incident at the nightclub and one count for the
stabbing incident in the country. The defendant was convicted as charged and on appeal argued
that the aggravated battery convictions were multiplicitous with the attempted murder conviction.

The court noted that a single wrongful act may not furnish the basis for more than one
criminal prosecution. The court then determined that if each offense charged required proof of a
fact not required in proving the other, the offenses do not merge and the charges are not
multiplicitous. This is known as the "elements test." However, the court also determined that
where offenses are committed separately at different times and places, they cannot be said to
arise out of a single wrongful act. 229 Kan. at 373. Under the facts of the case, the court held the
aggravated battery count for the stabbing incident in the country was multiplicitous with the
attempted murder. However, the aggravated battery count for the shooting at the nightclub was
not multiplicitous with the attempted murder because the offenses occurred at different times and
places. 229 Kan. at 373-74.

In State v. Warren, 252 Kan. 169, 843 P.2d 224 (1992), two women knocked
an elderly
woman to the ground and forcibly took her purse. The victim spent almost 3 months in the
hospital recovering from a dislocated shoulder, a broken kneecap, broken teeth, and facial
abrasions. The defendant served as the getaway driver for the two women and was convicted of
aggravated battery and aggravated robbery as an aider and abettor. On appeal, he claimed the
convictions were multiplicitous.

The court recognized the elements test to determine multiplicity which was enunciated in
Garnes. The court further noted that the offenses of aggravated battery and
aggravated robbery
each required proof of a fact not required in proving the other. Nevertheless, the court stated:

"If the charges in this case are not multiplicitous because one charge involves
proof of a
fact not required in proving the other, then it leads to the conclusion that only crimes involving
identical elements can be multiplicitous. This cannot be the case because this court has
found
crimes involving different elements multiplicitous. [Citations omitted.]" (Emphasis
added.) 252
Kan. at 182.

The court concluded: "We are satisfied, and so hold, that aggravated robbery and aggravated
battery are multiplicitous if, as in the case here, the same act of violence provided the basis
for
each conviction. The defendant's conviction for aiding and abetting aggravated battery is
reversed
and the sentence therefor vacated." (Emphasis added.) 252 Kan. 182.

Warren was followed by Vontress, where the defendant shot the
victim in the course of a
robbery and was convicted of separate counts of aggravated robbery and aggravated battery. On
appeal, the court stated: "The test concerning whether a single transaction may constitute two
separate and distinct offenses is whether the same evidence is required to sustain each charge."
266 Kan. at 256. In arguing that the convictions were not multiplicitous, the State pointed out
that aggravated battery required proof of elements not necessary to prove aggravated robbery, and
vice versa. Thus, according to the State, the convictions were not multiplicitous under the
elements test. The court rejected this argument and stated:

"The State fails to acknowledge that the sole allegation of bodily harm in its
complaint
and the judge's instructions to the jury was Spires' [the victim] gunshot wounds. To prove the
bodily harm element of aggravated robbery, the State was required to prove one fact: Vontress
shot Spires--the same fact necessary for proof of the great bodily harm element of aggravated
battery. Under the information and instructions in this case, the aggravated battery count required
proof of the fact which was also required to prove the aggravated robbery charge. Therefore, the
convictions are multiplicitous, and the punishment for both crimes is a violation of double
jeopardy. The aggravated battery conviction is reversed." 266 Kan. at 257.

The next significant case is Garcia, where the defendant sexually assaulted
the victim,
taping her hands and feet in the process. He was convicted of aggravated kidnapping, two counts
of rape, and one count of aggravated criminal sodomy. The State relied upon one of the rapes or
the aggravated criminal sodomy in order to establish the bodily harm element of aggravated
kidnapping.

On appeal, the court held crimes are multiplicitous where: (1) the crimes merge, that is,
they constitute a single wrongful act, and the same evidence is required to prove both crimes; but
if each offense requires proof of a fact not required in proving the other, the offenses do not
merge; and (2) one offense is an included offense of the other as provided under K.S.A. 21-3107.
Garcia, 272 Kan. 140, Syl. ¶ 3. The court determined that the crimes were not
multiplicitous
under the common-law elements test because both rape charges and the aggravated criminal
sodomy charge required an element not found in the aggravated kidnapping charge. 272 Kan. at
144. However, the court concluded that under the alternative test for multiplicity, the defendant's
conviction for aggravated kidnapping was multiplicitous with either the rape or aggravated
criminal sodomy convictions because "the bodily harm needed to prove aggravated kidnapping
was the same bodily harm supplied by one of the rape convictions or the aggravated criminal
sodomy conviction." 272 Kan. at 147. However, the Garcia court pointed out a
change in the
multiplicity analysis as a result of the 1998 revision of K.S.A. 21-3107:

"It should be noted that in 1998, the Kansas Legislature amended K.S.A. 21-3107
to
essentially remove the former K.S.A. 21-3107(2)(d). See L. 1998, ch. 185, § 1. In its place,
the
legislature inserted a new version, K.S.A. 2000 Supp. 21-3107(2)(b), which provides that an
included crime is one where 'all of the elements of the lesser crime are identical to some of the
elements of the crime charged.' This will necessarily change the multiplicity analysis for
cases
which occur under the new statute and signifies a return to the identity of the elements standard
that this court used prior to the enactment of K.S.A. 21-3107. Such a change, while
allowing
convictions for crimes which would have been multiplicitous under the statute at issue here, does
not violate constitutional prohibitions against double jeopardy as it does not subject defendants to
punishments greater than those intended by the legislature. [Citation omitted.]" (Emphasis
added.)
272 Kan. at 147.

The applicable law regarding multiplicity was seemingly clarified in State v.
Schuette,
273 Kan. 593, 44 P.3d 459 (2002), where the court held the defendant's convictions of criminal
threat and harassment by telephone were not multiplicitous. There, the court, after quoting
extensively from Garcia, stated: "The present statutory language in essence mirrors
the common-law elements test, thereby leaving it as the only remaining test for
multiplicity." (Emphasis
added.) 273 Kan. at 601.

However, in State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004), a case with
facts similar to
Warren, the court once again departed from the elements test to determine
multiplicity. The
victim had been thrown to the ground while the defendant attempted to grab her purse, and the
defendant was convicted of aggravated battery and aggravated robbery. The conviction for
aggravated battery was set aside by the Groves court under the rationale that both
convictions
were the result of a single act of violence. 278 Kan. at 307-08. In doing so, the court declared:
"The single act of violence paradigm concerning multiplicity is unaffected by the lesser included
analysis under K.S.A. 21-3107 before or after the 1998 amendment." 278 Kan. at 305.

The application of the multiplicity doctrine becomes even more complex in drug cases. In
State v. Stevens, 278 Kan. 441, 447, 101 P.3d 1190 (2004), the court stated: "The
test to
determine whether the charges in a complaint or information are multiplicitous is whether each
offense requires proof of an element not necessary to prove the other offense. If so, the charges
stemming from a single act are not multiplicitous." However, the court looked to the facts that
must be proven to establish those elements when applying the test. Under the facts of the case,
the court held the offenses of possession of ephedrine or pseudoephedrine with intent to
manufacture methamphetamine and attempted manufacture of methamphetamine were
multiplicitous. 278 Kan. at 448. However, the court also held the offenses of attempted
manufacture of methamphetamine and possession of drug paraphernalia were not multiplicitous.
278 Kan. at 450.

Finally, in State v. Patten, 280 Kan. 385, 122 P.3d 350 (2005), the court held
the
defendant's convictions of manufacture of methamphetamine and possession of drug
paraphernalia with intent to manufacture methamphetamine were not multiplicitous. The court
reiterated its reliance on the elements test for determining multiplicity but rejected the
"common-law" elements test in Stevens, which allowed the court to consider the
facts. 280 Kan. at 389-93.
Instead, the court held "the test of multiplicity is the strict elements test without considering the
facts that must be proven to establish those elements." 280 Kan. 385, Syl. ¶ 4. The court
concluded:

"What most recommends the strict elements analysis is its logical, mechanical
ease of
application and hence, certainty. Consideration of the facts proved, in contrast, puts multiplicity
on a case-by-case basis. We therefore adopt use of the strict elements analysis to determine
multiplicity for several reasons: (1) for facility of application and certainty, and (2) to avoid any
possibility of returning to the difficulties of the second prong of the Fike test." 280
Kan. at 393.

This summary of Kansas decisions seemingly demonstrates a movement toward adopting
a strict elements test as the only method of determining multiplicity of criminal charges.
However, not all prior Kansas decisions have relied on the elements test to determine multiplicity
and some decisions even questioned the usefulness of that test. Warren,
Vontress, and Groves
have not been overruled. These decisions were driven by the facts and in each case the court
concluded that separate offenses were multiplicitous when the defendant's same wrongful act
provided the basis for each offense, even though different elements were necessary to prove each
charge.

One reason for the confusion may be that Kansas appellate courts have traditionally
addressed the issue of multiplicity interchangeably with the issue of lesser included offenses,
focusing on the statutory language of K.S.A. 21-3107. This confusion was noted by the court in
Warren. 252 Kan. at 175. In the process, courts have consistently attempted to apply
an elements
test to determine multiplicity when such a test is actually more appropriate to determine the issue
of lesser included offenses.

"When the same conduct of a defendant may establish the
commission of more than one
crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each
of such crimes may be alleged as a separate count in a single complaint, information or
indictment." (Emphasis added.)

Simply put, when the criminal conduct of a defendant establishes the
commission of more
than one crime, K.S.A. 21-3107(1) provides statutory authority for multiple prosecutions for the
separate crimes. However, the State "may not split a single offense into separate parts where
there is a single wrongful act which does not furnish the basis for more than one
criminal
prosecution." (Emphasis added.) State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403
(1998).

K.S.A. 2005 Supp. 21-3107(2) deals with lesser included offenses and provides a
statutory test to define an "included crime." Upon prosecution for a crime, the defendant may be
convicted of either the crime charged or a lesser included crime, but not both. Prior to 1998, this
statutory definition included the language "a crime necessarily proved if the crime charged were
proved." See L. 1998, ch. 185, sec. 1. Based upon this language, Kansas appellate courts adopted
a two-pronged analysis to determine lesser included offenses:

"The first step is to determine whether all of the statutory elements of the alleged lesser
included
crime are among the statutory elements required to prove the crime charged. If so, the lesser
crime
is a lesser included crime of the crime charged. Under the second prong of the test, even if the
statutory elements of the lesser crime are not all included in the statutory elements of the crime
charged, the lesser crime may still be a lesser included crime . . . if the factual allegations of the
charging document and the evidence required to be adduced at trial in order to prove the crime
charged would also necessarily prove the lesser crime." State v. Fike, 243 Kan. 365,
Syl. ¶ 1, 757
P.2d 724 (1988).

In 1998, K.S.A. 21-3107 was amended to delete the language about a crime necessarily
proved if the crime charged was proved. This eliminated the second prong of the
Fike analysis
from the process of determining lesser included offenses. Under the current version of
21-3107(2), a lesser included crime includes a lesser degree of the same crime, an attempt, or "a
crime where all the elements of the lesser crime are identical to some of the elements of the
crime charged." Thus, the elements test is now the only applicable test to determine whether an
offense constitutes a lesser included crime of the crime charged. State v. Saiz, 269
Kan. 657, 661-63, 7 P.3d 1214 (2000).

However, this same strict elements test does not always lend itself to the determination of
multiplicity. Whether two separate offenses are multiplicitous must be determined by the
circumstances of each case. The facts matter and must be considered. If a single wrongful act by
the defendant provides the basis for more than one charge, then the offenses are multiplicitous
and the defendant must not receive multiple punishments for the same act.

Returning to the facts of this case, Escalante's case is identical to Vontress
except here we
are dealing with aggravated battery merging with attempted aggravated kidnapping rather than
aggravated battery merging with aggravated robbery. Escalante was charged with aggravated
battery by causing physical contact with Nancy with a deadly weapon, to wit: a knife. He was
also charged with aggravated kidnapping, rather than simple kidnapping, because he inflicted
bodily harm on Nancy in the course of the abduction. To prove the bodily harm element of
aggravated kidnapping, the State was required to prove one fact: Escalante stabbed Nancy--the
same fact necessary to prove the aggravated battery charge. In the closing argument, the State
argued that the stabbing incident was the basis for both the aggravated battery and the aggravated
kidnapping. Under the information and instructions in this case, the aggravated battery count
required proof of the same fact necessary to support the aggravated kidnapping charge. Based
upon the rationale of Vontress, the aggravated battery charge and the aggravated
kidnapping
charge were multiplicitous.

Escalante was only convicted of the lesser included offense of attempted aggravated
kidnapping, but this does not change the analysis. To find Escalante guilty of aggravated battery,
the jury must have found that he stabbed Nancy with a knife. To find Escalante guilty of
attempted aggravated kidnapping, the jury must have found that Escalante inflicted bodily harm
on Nancy in the course of a kidnapping, but that he failed to complete the commission of the
crime of kidnapping. The only evidence of bodily harm inflicted upon Nancy was the stabbing
incident, and this was the State's theory of the case. Thus, even though Escalante was only
convicted of attempted aggravated kidnapping, the same stabbing incident provided the basis for
that conviction as well as the aggravated battery conviction.

As in all cases, the State had discretion concerning the charges to be filed against
Escalante. The State could have charged Escalante with separate counts of simple kidnapping
and aggravated battery and in such a case there would have been no multiplicity problems.
However, when the State chose to charge Escalante with aggravated kidnapping based upon the
infliction of bodily harm upon Nancy, the aggravated battery charge merged into the aggravated
kidnapping charge. Escalante's convictions on both counts were multiplicitous.

As it stands, Escalante has been punished twice for his act of stabbing Nancy. He was
punished by the sentence he received for the aggravated battery conviction. He was also punished
by the enhanced sentence he received for attempted aggravated kidnapping as opposed to the
sentence he could have received for attempted simple kidnapping. The fact that the trial court
chose to run the sentences concurrently does not change the result that Escalante has received
multiple punishments for the same act. This is precisely what the doctrine of multiplicity is
designed to prevent.

The majority is correct in noting that the elements of attempted aggravated kidnapping
are different from the elements of aggravated battery. Under the strict elements test enunciated in
Patten, aggravated battery and attempted aggravated kidnapping cannot possibly be
multiplicitous crimes. However, the present case can be distinguished from Patten, a
drug case
which did not address the single act of violence rule of multiplicity. The holding of Patten
should
be limited to its facts and does not undermine the many prior decisions recognizing the merger of
crimes when they arise from a single act of violence by the defendant.

Under the facts of this case, Escalante's convictions of aggravated battery and attempted
aggravated kidnapping were multiplicitous. If a jury returns guilty verdicts to multiplicitous
charges, the trial court must accept only the verdict as to the greater charge under the doctrine of
merger. State v. Dickson, 252 Kan. 39, 49, 843 P.2d 182 (1982). Accordingly,
Escalante's
conviction of aggravated battery should be set aside.